“If you are finding the FCC’s reasoning on this point difficult to follow, you are not alone,” the Court wrote. “We do not get it either.”
On Friday, the U.S. Court of Appeals for the DC Circuit invalidated a long-standing Federal Communications Commission (FCC) requirement that opt-out notices be placed on fax advertisements, even when the faxes are sent with the recipient’s prior express consent.
The requirement, known as The Solicited Fax Rule, was created by the FCC in 2006, and was purported to be a logical extension of the Junk Fax Prevention Act, even though the text of the statute only requires opt-out notices on unsolicited faxes. In an 11-page opinion, the Court highlighted (correctly) the absurdity of the FCC rule: “Let that soak in for a minute,” the Court wrote. “[The defendant] was potentially on the hook for $150 million for failing to include opt-out notices on faxes that the recipients had given [the defendant] permission to send.”
The FCC argued that even though the JFPA’s opt-out requirement only applies to cases where the recipient has not given prior consent, prior consent lasts only until it is revoked, so a fax recipient should be given the means to revoke that consent. “If you are finding the FCC’s reasoning on this point difficult to follow, you are not alone,” the Court wrote. “We do not get it either.”
The ruling is a big blow to TCPA and class action litigators, who have capitalized on the FCC’s junk fax rules in recent years, including the targeting of marketing research companies. In another, perhaps even more important case, the DC Circuit is also presently weighing whether the FCC’s 2015 expansion of the TCPA’s “autodialer” definition was also illegal.
The FCC has not yet indicated whether they will appeal this latest ruling. In the mean time, marketing researchers should consult the Insights Association’s summary on junk fax law compliance and our frequently asked questions, and speak with a knowledgeable attorney to ensure fax practices are compliant (and unlikely to attract trial lawyers).
This information is not intended and should not be construed as or substituted for legal advice. It is provided for informational purposes only. It is advisable to consult with your attorney on the precise scope and interpretation of any laws/regulation/legislation and their impact on your particular business.